NEXTERA ENERGY GLOBAL HOLDINGS B.V. & Anor v KINGDOM OF SPAIN

Facts

NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V., two Dutch investors, brought ICSID arbitration (ICSID Case No. ARB/14/11) against the Kingdom of Spain under the Energy Charter Treaty (ECT), to which both Spain and the Netherlands were Contracting Parties. They obtained an award against Spain, and Spain's application to an ICSID ad hoc committee to annul it failed.

In Originating Application No 1283 of 2023, the investors obtained, in January 2024 and without notice, an order registering the award and the annulment decision as judgments of the High Court under s 4 of the Arbitration (International Investment Disputes) Act 1968. In May 2025, by Summons No 1371 of 2025, Spain applied to set aside the registration. It argued it was immune under s 3(1) of the State Immunity Act 1979 because the tribunal had no jurisdiction: under its Intra-EU Objection, no valid agreement to arbitrate can exist between an EU Member State and an investor from another Member State. Alternatively, it said the order should be set aside in the interests of justice because the award contravened EU law. The investors relied on the exceptions for submission to jurisdiction (s 4) and for arbitrations (s 11).

Issues

1. Whether Spain submitted to the jurisdiction of the Singapore courts under s 4 of the State Immunity Act by acceding to the ICSID Convention.
2. Whether Spain had agreed in writing to arbitrate under Art 26 of the ECT so that the s 11 exception applied, despite the Intra-EU Objection.
3. Whether the registration order should be set aside in the interests of justice.

Holding

The High Court dismissed Spain's application to set aside the registration order, holding that both the submission and arbitration exceptions applied so that Spain had no state immunity, and that setting aside would not be in the interests of justice. Costs were to be agreed or decided on written submissions.

Reasoning

On submission, the court followed Kingdom of Spain v Infrastructure Services Luxembourg Sarl [2023] HCA 11 and [2024] EWCA Civ 1257, along with Australian and US decisions on this very award. By accepting Art 54 of the ICSID Convention, a Contracting State agrees in writing that awards against it will be recognised and enforced in other Contracting States, which is an express submission. Because the ICSID system is self-contained, as noted in The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56, a state that failed to annul an award cannot dispute the tribunal's jurisdiction before a national court, so the s 4 exception did not depend on first proving the arbitration agreement.

Although that sufficed, the court also found the s 11 exception met. Art 26 of the ECT was a standing offer to arbitrate, accepted by the investors' election of ICSID. Following DNZ v DOA [2026] SGHC(I) 1, it rejected the Intra-EU Objection: EU law primacy operates only within the EU system, Art 26 is a multilateral obligation with no disconnection clause, and Spain, a Contracting Party in its own right, made the same offer to all investors. The court left open whether ICSID's self-contained system, issue estoppel or the Primacy Principle would independently bar Spain's challenge.

Public policy is not a ground for resisting an ICSID award, as Micula v Romania [2020] UKSC 5 held. Spain's dilemma came from treaties it had chosen to enter, and setting aside registration would put Singapore in breach of its own treaty and statutory obligations.

From the judgment